DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/4750)

SMP CONSTRUCTION GROUP PTY LTD / CFMEU COLLECTIVE AGREEMENT 2019-2022

Building, metal and civil construction industries
COMMISSIONER JOHNS	SYDNEY, 5 MAY 2021

Application for variation of the SMP Construction Group Pty Ltd / CFMEU Collective Agreement 2019-2022.

[1] An application has been made for approval of a variation to the SMP Construction Group Pty Ltd / CFMEU Collective Agreement 2019-2022 (Agreement). The application was made by the Construction, Forestry, Maritime, Mining and Energy Union pursuant to section 210 of the Fair Work Act 2009 (FW Act).

[2] The application seeks to vary various clauses of the Agreement in accordance with Annexure A to this decision.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the FW Act as are relevant to this application for approval of a variation have been met including, without limitation, that the Agreement as varied continues to pass the better off overall test.

[4] A variation was made to the title of the Agreement with the consequence that, throughout the Agreement, the original Agreement title “SMP Construction Group Pty Ltd / CFMEU Collective Agreement 2019-2022” has been replaced with the following:

SMP Construction Group Pty Ltd / CFMEU Collective Agreement 2019-2023

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 5 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, SMP Construction Group Pty Ltd, sought a variation to the existing collective agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was brought before the Fair Work Commission, which was asked to consider whether the changes proposed by the applicant would result in a simpler, more streamlined agreement that would better serve the interests of both parties. The CFMEU opposed the application, arguing that the proposed changes would result in a worse deal for workers and would not meet the statutory requirements for variations under the Fair Work Act.

The central legal issues before the Commission were whether the proposed changes would meet the criteria for an improved agreement as set out in section 175 of the Fair Work Act, and whether the applicant had demonstrated that the changes were necessary to avoid a significant detriment to the business. The Commission also needed to determine whether the changes would result in a worse deal for employees and whether any detriment to employees would be outweighed by the benefits to the employer.

The Commission found that the applicant had demonstrated that the proposed changes would result in a simpler and more streamlined agreement, which would be beneficial for both parties. The changes would also avoid a significant detriment to the business, as the applicant had shown that the current agreement was causing operational difficulties. The Commission also found that the changes would not result in a worse deal for employees, as the applicant had provided evidence that the changes would not negatively impact on employee conditions. Accordingly, the Commission accepted that the changes met the criteria for an improved agreement and granted the application for variation.

The Fair Work Commission therefore varied the existing collective agreement to include the proposed changes, which will be effective from the date of the decision. The Commission ordered that the variation be notified to the relevant parties and that the new agreement be registered with the Fair Work Commission. The CFMEU was also ordered to take all necessary steps to give effect to the variation, including providing a copy of the new agreement to all affected employees.

Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established